NAR Model of Mediation Lynn P. Cohn

Model Intended... To be used as guidelines for an effective mediation program

Model Not Intended As...  Rules  Policy  Code

Mediation Is Voluntary Parties control the outcome.

Mediation Is Confidential  It covers all statements, discussions, communications, and documents exchanged  No reporting potential ethical violations that might be discovered as a result of participation in mediation  Mediation officer shall not testify  Mediation officer’s notes are destroyed

Attorneys  Their presence is not required  They may attend  Notice of their attendance is required

Witnesses  Their presence is discouraged  They have a limited role  Alternatives

Documentation  Might be helpful  Exhibits are unnecessary  Appropriate role in the process

Mediation Officer’s Role  Facilitates communication  Reveals interests of parties  Explores alternatives

Mediation Officer’s Approach  Facilitative approach encouraged  Evaluation in appropriate circumstances  May not impose solutions

Mediation Officer’s Obligations  Disclose conflicts of interest  Abide by confidentiality  Complete paperwork in a timely manner

Initiating Mediation Option 1: Offer parties mediation if matter is deemed arbitrable Option 2: Offer parties mediation before arbitrability is determined In the future... Parties request mediation prior to requesting arbitration

Assigning a Mediation Officer  Random rotation  Mutual request  Objection, attempt to reassign

Pre-mediation Tasks Letter  At least 10 days before session  Explain process  Discuss logistics  Include agreement to mediate Call  If there are pre- mediation concerns  Staff or mediation officer  One or both parties

Stages of Mediation Process  Arrange the room Position mediation officer at center of table  Mediation officer makes opening statement Process Voluntariness Confidentiality Sign mediation agreement

 Parties’ give statements/questions  Identify issues  Cross-talk  Caucus  Build an agreement  Close Stages of Mediation Process

Writing the Agreement  Reduce agreement to written form during session  Agreement should: include terms acceptable to all detail specifics be written in simple,clear, and familiar language Focus on positive action

Ethical Issues  The mediator shall disclose real and/or potential conflicts of interest  No weapons  Risk of harm

Ethical Issues  Bad Faith Includes Falsifying and/or withholding key information Using mediation process solely to gain advantage Excludes Failing to reach agreement/compromise  Assume parties are acting in good faith.